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iTunes is not responsible for unlawful Apps on the App Store
Friday, 25 May 2018 10:28

iTunes is not responsible for unlawful Apps on the App Store

Giacomo Lusardi

According to the Court of Florence, iTunes is not responsible for the potential illegality of its hosted content, as it is a hosting provider that performs purely technical and passive functions, and therefore a "neutral" activity.

The case in point concerned a former Olympic clay-shooting champion who took court action over the unauthorized reproduction of his image in a computer game available on the App Store. The action was filed both against the game's software developer and against iTunes, the platform on which the game was made available to users via the App Store. The court's ruling of 26 February 2018 upheld the claims of the sportsman against the software company, ordering the company to pay damages.  However, the court rejected the claims against iTunes, deeming the platform a "passive" hosting provider and therefore exempt from liability.

It is worth observing that in law a "hosting provider" is any natural or legal person who offers to the public a data storage service of these data that have been provided from whom asked for the service (Articles 2 and 16 of Legislative Decree 70/2003).  The hosting provider is not responsible for the information it stores as long as:

  • It is not aware of any unlawfulness regarding the information or activity performed, and;

  • It acts immediately to remove the information or disable its access should a competent authority give notice of unlawfulness (Article 16 of Legislative Decree 70/2003).

Additionally, the hosting provider is not obliged to monitor the information stored and transmitted, nor to actively seek facts or circumstances that would indicate the presence of illegal activity (Article 17 of Legislative Decree 70/2003).

The decision of the Court of Florence did not set out clearly the reasons why it regarded iTunes a passive hosting provider.  The court limited itself to a general reference to the Terms of Use of the iTunes App Store service, and to quoting part of the recent Italian case law, which addressed the issue of the responsibilities of Internet Service Providers.

However, not all relevant rulings support the decision in Florence, or even if they do they have at least been subject to heated debate. For instance, the Court of Rome on 15 July 2016 outlined a number of circumstances which, when present, precluded the classification of a hosting provider as passive, and therefore denied the related exemption from liability.  In particular, the presence of features such as:

  • The organization of the portal's content into special categories;

  • The fact that content is not randomly published by users but instead ordered and catalogued by the provider, and;

  • The insertion of advertising;

would lead a court to regard such an entity as a "content provider", intentionally providing online content, to which full civil liability applies.

A few years earlier, the Court of Milan (decision dated 19 May 2011) also identified some indicators that would exclude passivity and denote a hosting service provider as active:

  • The possibility to search for uploaded files via a search engine;

  • Content suggestions based on a user's previous choices;

  • Organization and selection of material uploaded by users.

If we think about iTunes App Store, where the applications are organized in numerous categories, divided into classifications according to various criteria (e.g. "Top Paid", "Top Free" etc.), and advertised on the home page according to a definite system, there would appear to be some grounds for questioning any assessment (such as the Court of Florence's) of iTunes as a passive hosting provider, a merely technical portal that performs a neutral activity.

What is beyond debate is that the distinction between passive/active hosting providers and content providers is today rather nebulous, by virtue of continuous technological evolution that often turns out to be at odds with the dogmatism of legal categories, forcing the guardians of the law into complex tasks of interpretation.

giacomo.lusardi@milalegal.com